Will – validity – whether will to take effect on satisfaction of condition – no express condition in will – whether valid as conditional will – whether requisite testamentary intent for will to have immediate dispositive effect on execution
D was the daughter and only child of the deceased (“X”), who died in 2007, and M. In 1990, X and M divorced and X was given custody of D. When D turned 18 in 1996, she left home and never contacted X again. On 15 June 2003, X made a homemade will (the “Will”), which had not been executed in accordance with s. 5(1)(c) or (d) of the Wills Ordinance (Cap. 30), bequeathing one flat to his father and another to P, his younger sister. P applied for a grant of letters of administration and brought a probate action. She gave evidence that on the day X began a long pre-retirement holiday to South Africa, she witnessed him write and sign the Will; X told her he was making the Will as he did not want M to use D to inherit his two flats; he was not leaving them anything; if he encountered a mishap, P was to take the Will to her close friend and her brother (“Ks”) to sign. After X returned from the trip, P offered to return the Will to him but he told her to keep it safe. D argued that the Will was made to cater for the contingency that X might die unexpectedly on holiday and was intended to take effect only if and when that happened. The Deputy Judge accepted P’s evidence and rejected D’s defence. He held that the Will was “written in clear and unambiguous terms”; it contained no express condition and was not a conditional will; and it was duly executed under s. 5(2) of the Ordinance. He therefore pronounced for the Will in solemn form. D appealed.
Held, dismissing the appeal, that:
- The focal point on appeal should be whether the judgment showed that the judge had correctly understood and applied the relevant law and whether there was evidence to support his findings of fact. Here, the Deputy Judge correctly stated that s. 5(2) of the Ordinance required “the court’s satisfaction that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased”. Further, P’s evidence was in material parts consistent and convincing and the Deputy Judge was entitled to accept it in full.
- A conditionally executed document, even though entitled a will, was not valid as a will, due to a lack of testamentary intent (animus testandi) that it have immediate dispositive effect on execution, whereas an unconditionally executed will which, by its terms was conditional or contingent in its operation (a conditional will), was valid but only took effect on the satisfaction of the condition as expressed therein. Here, X had clearly stipulated his instructions for the disposition of his assets “when I died” without mentioning his holiday. There was no language which required the Deputy Judge to consider if that trip was: (a) only the reason for making the will; or (b) to limit the operation of the will. Only if there had been such language and it had been ambiguous, would the Deputy Judge have needed to consider extrinsic evidence. Accordingly, insofar as D alleged the Will was a conditional will contingent on X’s death during his trip, the absence of such condition in the Will was as a matter of law fatal to the argument.
- The Deputy Judge’s finding that X had the requisite testamentary intention when he executed the Will to make it immediately dispositive was not undermined by any of the doubts raised by D. Inter alia, as for X’s instructions about Ks signing the Will as witnesses if he had a mishap, the evidence was not that X referred to a mishap “during this trip” or “in Africa”; and he continued to treat the Will as important after he returned home, which showed that he knew it was not limited or spent. Further, when X executed the Will, he intended it to operate immediately and be formalised when Ks signed it; and he never later reversed his intention. Further, unlike the insertion of a date as in Corbett v Newey, X was not purporting to reserve to himself a means of controlling the operative time of the Will.
- The judgment would not be set aside only because of a delay in its delivery after trial. However, the Court had considered the challenge with a “higher degree of scrutiny”. It remained for D to identify omissions, errors etc which invalidated the Deputy Judge’s findings, rendered the judgment unsafe and led to injustice to her. D had failed to do so.